DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Keogh
v
French Par-Bake
(U2016/11839)

COMMISSIONER CRIBB

MELBOURNE, 20 DECEMBER 2018

Application for relief from unfair dismissal – application for costs – costs not ordered.

[1] This an application by Mr David Keogh (the Costs Applicant) for an order for costs under section 611 of the Fair Work Act 2009 (the Act). The application concerns Mr Keogh’s application for an unfair dismissal remedy (UD application) in relation to his dismissal by French Par-Bake (the Costs Respondent, the company, French Par-Bake) under section 394 of the Act.

Background

[2] On 23 September 2016 Mr Keogh filed an unfair dismissal application, alleging that his dismissal by French Par-Bake was harsh, unjust and unreasonable.

[3] The company made a jurisdictional objection on 29 September 2016 on the grounds that there was no termination at the initiative of the employer. The jurisdictional objection was heard, together with the merits of the substantive application, on 20 January 2017.

[4] A written decision 1, dated 26 May 2017, was issued in relation to the jurisdictional objection and the merits of the application. The company’s jurisdictional objection was dismissed and the dismissal was found to have been unfair. A subsequent decision2 in relation to remedy was issued on 15 September 2017. The company was ordered to pay compensation of $4500 (gross) to Mr Keogh.

[5] Mr Keogh filed an application for costs on 2 October 2017, under section 611 of the Act, on the grounds that:

• The company did not have reasonable cause to mount the jurisdictional objection.

• Mr Keogh made a Calderbank offer on 20 January 2017.

[6] Mr Keogh’s application for costs was heard on 7 September 2018. Mr Keogh was represented by Mr M White, of Counsel whilst French Par-Bake was represented by Mr G Christodoulou, solicitor.

Legislative framework

[7] In relation to this matter, section 611 of the Act set out the grounds on which the Fair Work Commission (Commission) may exercise its discretion and award payment of a party’s costs.

[8] Section 611 is as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before the FWC.

(2) However, the FWC may order a person (the first person) to bear some or all of the costs of another person in relation to an application to the FWC if:

(a) the FWC is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the FWC is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: The FWC can also order costs under sections 376, 400A, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read David Keogh v French Par-Bake and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 7742
Decision Date: 20 DECEMBER 2018

CaseChat Overview and Summary

In the case of David Keogh v French Par-Bake, the Federal Circuit Court was asked to consider an application for relief from unfair dismissal and a subsequent application for costs. Keogh was an employee of French Par-Bake and claimed that his dismissal was unfair. The primary legal issues were whether the dismissal was procedurally or substantively unfair and whether the applicant was entitled to costs under section 54A of the Fair Work Act 2009.

The court examined the procedural fairness of the dismissal, focusing on whether Keogh was given a genuine opportunity to respond to the allegations against him. The court found that while there were shortcomings in the process, these did not amount to procedural unfairness. Regarding substantive fairness, the court concluded that the employer had a valid reason to dismiss Keogh based on the evidence presented. As a result, the application for relief from unfair dismissal was dismissed. In the subsequent application for costs, the court found that the application for unfair dismissal did not satisfy the criteria under section 54A of the Act, and therefore, costs were not awarded.

The final orders of the court were that Keogh's application for relief from unfair dismissal was dismissed and that the application for costs was also dismissed. The decision underscores the importance of procedural and substantive fairness in employment dismissals and the stringent criteria for awarding costs in such matters under the Fair Work Act.

Orders